1.1.2 Importance of, but difficulty in implementing, constitutions

A new constitution can take root easily if the country has a commitment to and the infrastructure necessary for the rule of law. But other social and political orders of authority may compete with it where charismatic politics or the tradition of the “strongman” prevails, where high authority is ascribed to religious or customary leaders, or where society is closely regulated by social norms, institutions, and hierarchies. In a society that is largely homogenous, with common values and aspirations, and with members who have been part of the same state for a long period, constitutional reform is relatively easy, but not particularly critical (for example, consider the reform of the governmental system in Finland in 2000). Such a country may indeed be able to dispense with, at least, a formal constitution (as is, or at least until recently was, the case in Great Britain and New Zealand). A state that has several communities with different languages, religions, or modes of social organization is less able to rely on common values and social institutions for the regulation of society. Instead it may have to depend in part on the values, aspirations, rules, institutions, and procedures incorporated in the constitution—and this is not easy, as old loyalties and habits persist but also take on new political significance.

Sometimes the provisions of the constitution to protect the rights of the people, promote constitutional values of equality and social justice, and ensure the integrity and the accountability of the government fail. One reason is that the state in many developing, and indeed some developed, countries is the principal means by which ministers, bureaucrats, and others with special access to the state accumulate illegal wealth, give state jobs and contracts to relatives and friends, and protect themselves from due process of the law (by impunity, bribery, or intimidating the judiciary). Even when new institutions to promote the accountability of state organs or fight corruption or protect citizens’ rights are established (as they are in many new constitutions), they are corrupted and often rendered ineffective by ministers, bureaucrats, and tycoons.

A particular difficulty in implementation arises with regard to constitutions that are made in conflict or postconflict situations. They are made under considerable pressure or even coercion, often from powerful Western states, and assume demilitarization, the establishment of consensual institutions and orderly state processes, and an end to violence. But rarely do the antagonisms and the armed forces that led to conflict end, nor does the cease-fire last long. A particular focus of this handbook is constitution-making in conflict situations.